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Wrongs and rights, more wrangles

[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.

Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:

… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.

But is the moral advance of human sympathies one directional only? That question is the key in to the current standoff about our relationship with the Strasbourg Court and human rights. One camp says there can be no turning back. Their argument owes its power to the convergence of legal and political canons about progress (see for example Ronald Dworkin’s words about the law continuing to “work itself pure”). The other camp takes a more radical position; that things can change and they do, sometimes for the worse, and the law must not be hamstrung by its own artificial constraints.

So of course there is no meeting ground between these positions. There is nothing more to say and all is over bar the jeering.

But in fact, there is always more that can be said; it is only because until very recently the Human Rights Act and the Convention had such a structure of canonical authority that one was discouraged from saying it, or even thinking it.

So what are the specific proposals? In February this year the Policy Exchange think tank published a number of proposals in Michael Pinto-Duschinsky’s paper ‘Bringing Rights Back Home’ (see our post). One of the suggestions was withdrawal from the ECHR whilst remaining within the Council of Europe, leaving us free to tinker with our own Bill of Rights. Another idea – a widespread one – is simply to disregard Strasbourg interpretations of Article 8, since they are not binding either on us or that Court itself, a route taken with impunity by other Council of Europe member states. And the likelihood of Britain being subject to the only sanction for non compliance with Article 46 – banishment – is vanishingly small. As we have pointed out in a previous post, Britain is a relatively compliant member. There are plenty of egregious offenders in the Council of Europe, none of whom have been sacked.

The proponents of a domestic Bill of Rights have been taken seriously enough for a Commission to have been established. However this project is beset with problems and it is unlikely that the Commission will come up with anything acceptable to the current coalition. Instead, some campaigners, in particular the MP and former FCO legal adviser Dominic Raab, are pressing for a “less ambitious” interim solution through a series of “bespoke amendments” to the Human Rights Act, in particular to address the growing problem of legal challenges to deportation under the family life limb of Article 8.

Raab’s proposals have of course invited deep disapprobation but few human rights sites give them much of an airing. So, in the spirit of free debate it is worth mentioning some of them here. He suggests:

Amending the Human Rights Act to enshrine free votes on Strasbourg rulings so that these rulings are subject to a debate in the House of Commons, with a commitment by the main parties to permit free votes

Amending Section 2 of the HRA so that the courts no longer have to take Strasbourg case law “into account”; this is after all not an obligation under the Convention, which only requires the UK to follow rulings to which it itself is a party. The amendment to Section 2 should clarify the UK courts’ duty to consider Strasbourg case law, taking into account relevant common law principles applied by other common law countries

Amending Section 3 of the HRA to prevent the courts from “reading down” legislation that they regard as inconsistent with the Convention where doing so would undermine the object and purpose of the legislation.

Amending Section 6 of the HRA to prevent the courts striking down decisions of public authorities in circumstances where this would undermine the object and purpose of the authorising legislation

Deleting Section 33(2) of the UK Borders Act 1997 thus removing the express human rights exception and replacing it with a specific regime for handling claims that the deportee may risk real torture or death on return (the threshold should be raised to the high level set by the UN Convention Against Torture 1984)

Coming up with some statutory pressure on the courts to have the courage to avail themselves of the margin of appreciation it is permitted under the second paragraph of Article 8 – the national security/law enforcement exception – to facilitate automatic deportation under the UK Borders Act 2007 for criminals convicted of serious offences and terrorist suspects, irrespective of claims that deportation would disrupt their family ties (It might be objected that the Strasbourg Court is not solely responsible for the runaway potency of family life under Article 8; the Supreme Court itself has ruled on the primacy of children’s interests in deportation cases (see below). But this can be dealt with by Parliament. As we’ve repeatedly pointed out it is a strange feature of our current constitutional dispensation that elected legislators can overturn contentious human rights interpretations made by UK courts, but they can do nothing about Strasbourg’s rulings, which the government is bound to follow.)

One mechanism for putting this last proposal into practice has been discussed by Adam Wagner, along the lines of Section 12 of the Human Rights Act – putting special emphasis on the public security exception to Article 8 in the way that the current provision seeks to shore up the right to free expression against the advance of the floodwaters of privacy.

The problem with Section 12 as a model is that it was designed as a compromise between the need for greater protection of privacy as required by the ECHR, and concerns that the right to free speech, already protected in the common law, would be eroded by Article 8. As a compromise, it falls between both stools because the ECHR itself does not permit the ranking of rights and clawback provisions against one other. A statutory clause encapsulating the public security exception may meet the same fate.

However they work out in practice. all these steps are legally possible. The fact that they are open to criticism does not mean that they are impermissible. What any such reform must keep within its sights is that Convention rights – any rights – are not defined independently of any variable. Rights are man-made and incremental. There is nothing sacrosanct about them. There was a time when the ‘rights’ of humans were determined without even minimal weighing of any values, because the only thing that mattered was ownership of property, enshrined in this Roman legal principle of property law:

Cuius set solum, emus set usque ad coelum et ad infernos -‘To whomsoever the soil belongs, he owns also to the sky and to the depths’

We have of course moved on from this absolutist position and today’s rights are more nuanced, and in general independent of property ownership. Nevertheless they all reflect balances that adjust the identifiable interests of members of society. So while the courts have put the majestic weight of the law behind the right of the family – any family – to stay together, without reference to any social contingencies such as crime and nationality , the whole thing has fallen into disrepute because it results in a huge over-representation of a minority (foreign nationals with UK-born children who happen to be caught up in the criminal justice system). Of course the public is going to feel that the ECHR, or the Human Rights Act, or the appellate courts, or all of them, have been hijacked; why shouldn’t they?

As long as we remain in thrall to the idea that Strasbourg-generated rights are somehow more pure than other legal interests, the perception will flourish that people are being asked to pay too high a price for this purity. There’s too much group-think in this subject – communism versus liberalism, individualism versus socialism, and of course europhile versus eurosceptic. A nostalgic bill of rights harking back to the Magna Carta and feudal texts about habeas corpus may satisfy a residual sentimentalism but it is not going to address the problems created by the Supreme Court deciding that the interests of deportees’ children should prevail over all others. Instead of joining battle on Euro-grounds we should be asking the kind of questions we ask about “ordinary” law, like “does this work?” or ” are there preferable alternatives?”, and “do its benefits exceed its costs?” That way we can reduce the temperature of this febrile debate and render it a a workaday legislative problem.

Update

Today, the 28th of April, the newspapers report that a declaration from all the Council Member states has been issued which invites the court, when examining cases related to asylum and immigration, “to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances”. According to The Telegraph, this means that the British Supreme Court would, in most cases, “become the last point of appeal for those fighting deportation.”

We will consider the constitutional mechanism of this declaration in a later post.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.